My father is dead and mother has been in a nursing home on private pay the last three years. Roughly $8000.00 goes to the nursing home each month so the money they have is going fast. Mom has enough money to last one year.
How much money can I give as a gift and still be within the law? Thank you, Larry
There are several things going on, here. First, unless the POA gives you the right to make gifts, in most cases, you cannot do so. Assuming your POA DOES give you the right to do this, you still need to be really careful, because you are required under a POA to act in the best interest of the principal. It is difficult to see how giving away their money could be construed to be in their best interest. If you have a LONG history of your parents making gifts, you can argue you are just continuing this. If not, you run the risk of being accused of self-dealing, which is a breach of your fiduciary duties.
There is also the issue with the nursing home. If your mother is almost out of funds, she will not be able to qualify for benefits, if you have made gifts less than 5 years from the date of application. Since it sounds like you are going to be within that window, you need to consult with an elder law attorney to see what you should do, if anything.
If Medicaid and the above issues were not involved, you would legally be able to give as much as you wanted. If the gift was more than $13k to any beneficiary, then you would need to report it to the IRS.
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You may not be able to do anything because of the 60 month rule. Get with an elder law attorney immediately to assess your situation. You have waited too long here to be proactive, so get with an elder law attorney today.
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Estate Planning Attorney
Genrally to allow gifting the power of attorney would need to specifically authorize the agent under the power of attorney to gift; see Section 244.41 of the Wisconsin Statutes. If gifting is specifically authorized, then see Section 244.57 of the Wisconsin Statues for requirements and limitations.
There might be a second (and additional) issue if within the next 60 months there might be a need for governemental assitance for the nursing home cost; the rules to qualify for assitance may furether limit gifting, and if only one year (12 months time $8000 per month = $48,000) those may effectively limit qualification for medical assitance if any amount is gifted.. However, other assets, if any, are also part of that analysis.
The law in different areas does not dovetail so the answer to "still be within the law" depends on each particular law involved. That makes your question much more complicated than it may itially appear.